FBI to Increase Secret Powers in the Near Future
by Roger Strother*, 9/23/2008
The Department of Justice (DOJ) plans to finalize secret changes to a secret rule that sets guidelines for the Federal Bureau of Investigation's (FBI) work. The changes will reportedly lower intelligence-gathering standards and could pose a significant threat to individual rights. Several senators have voiced strong concerns about the changes.
Previously, the FBI had three different sets of guidelines for allowable activities depending on the type of investigation being conducted. First were guidelines on General Crimes, which were last revised in May 2002 without any public review. The other two sets of guidelines for National Security Investigations and Foreign Intelligence Collection were produced in 2003, but only heavily redacted versions were released publicly.
The guidelines met with strong criticism that the powers granted would have a negative impact on civil liberties and investigatory effectiveness. The 2002 revision allowed for data-mining of commercial databases for personal information and attendance at public meetings of domestic groups with no prior suspicion and little internal control.
According to a Sept. 12 DOJ briefing for department officials, the FBI contacted DOJ leadership over a year ago and requested that the three guidelines be combined. The request was made in part because the FBI found that some of the restrictions interfered with its ability to investigate, and in part because the agency "didn't see the public policy rationale for the differences and what could be done under one set of guidelines versus the other."
Following the briefing, the American Civil Liberties Union (ACLU) reiterated concerns that the revised guidelines would give "unparalleled leeway to investigate Americans without proper suspicion, and that will inevitably result in constitutional violations." The revised guidelines would reportedly allow FBI agents to collect information on Americans through physical surveillance, soliciting informants, and interviewing friends of people they are investigating, all without the approval of a supervisor or reasonable suspicion. Additionally, racial profiling would be permitted.
Sen. Patrick Leahy (D-VT), chair of the Senate Judiciary Committee, has complained that DOJ has refused to provide copies of the new guidelines to the committee despite an August request from him and Sen. Arlen Specter (R-PA), ranking minority member on the committee. Leahy and Specter held a Sept. 17 hearing on the guidelines despite not receiving the documents. Attorney General Michael Mukasey has stated that the new standards are scheduled to take effect Oct. 1.
Additionally, Sens. Dick Durbin (D-IL), Russ Feingold (D-WI), Edward Kennedy (D-MA), and Sheldon Whitehouse (D-RI) challenged the guideline changes after being briefed on the rule in August. The senators expressed concerns about the broad authority to investigate American citizens with little or no basis of suspicion and the fact that new powers include authority to racially profile individuals.
However, in testimony before the Senate Judiciary Committee, FBI Director Robert Mueller argued that the existing guidelines are inadequate to meet the contemporary threat of terrorists operating within sophisticated networks. Mueller further claimed, "We know that if we safeguard our civil liberties but leave our country vulnerable to terrorism and crime, we have lost."
The FBI has a poor track record when it comes to exercising increased powers in a responsible manner. Last May, the FBI was forced to withdraw an unconstitutional National Security Letter (NSL) and in March admitted to improperly accessing telephone records, credit reports, and Internet usage of American citizens. Further, in a report to Congress, it underreported the number of NSLs it had issued by 4,600.